SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2657-16T3

FISCHEL GOLDBERG and JERRY 

VELASQUEZ, individually and 

on behalf of all others 

similarly situated,

Plaintiffs-Respondents,

v.

HEALTHPORT TECHNOLOGIES, LLC,

KIMBALL MEDICAL CENTER, INC.,

COMMUNITY MEDICAL CENTER, 

INC., BARNABAS HEALTH, INC.,

OCEAN MEDICAL CENTER, JERSEY 

SHORE UNIVERSITY MEDICAL 

CENTER, and MERIDIAN HEALTH 

SYSTEM, INC.,

Defendants-Respondents.

_____________________________

Submitted February 28, 2018 — Decided

Before Judges Nugent and Geiger.

On appeal from Superior Court of New Jersey, 

Law Division, Essex County, Docket No. L-1421-

14.

Clark Law Firm, PC, attorneys for appellant

Diana Dos Santos (Gerald H. Clark, of counsel; 

Mark W. Morris, on the brief).

Chase Kurshan Herzfeld & Rubin, LLC, attorneys 

for respondents Fischel Goldberg and Jerry 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R. 1:36-3.

September 5, 2018
2 A-2657-16T3

Velasquez (Michael R. Rudick, Peter J. 

Kurshan, and Maureen Doerner Fogel, on the 

joint brief).

Thompson Hine, LLP, attorneys for respondents

HealthPort Technologies, LLC, Kimball Medical 

Center, Inc., Community Medical Center, Inc., 

Barnabas Health, Inc., Ocean Medical Center, 

Jersey Shore University Medical Center, and 

Meridian Health System, Inc. (Rebecca A. 

Brazzano and Seth A. Litman (Thompson Hine, 

LLP) of the Georgia bar, admitted pro hac 

vice, on the joint brief). 

PER CURIAM

This is a class action. Appellant, Diana Dos Santos, appeals 

from two Law Division orders, the first approving the class action 

settlement, the second entering a judgment of dismissal. Appellant 

contends our review is de novo. She submits that under de novo 

review we must reverse the Law Division orders, because notice to 

the class members was "constitutionally lacking." Respondents, 

nominal plaintiffs Fischel Goldberg and Jerry Velasquez, contend 

we should review the Law Division orders under an abuse-ofdiscretion standard. They submit that under the deferential abuseof-discretion standard, we must affirm the Law Division orders, 

the trial court having properly exercised its discretion to approve 

the class action settlement and dismiss the case. We conclude the 

scope of our review is limited to determining whether the trial 

court abused its discretion. Finding the court did not, we affirm.
3 A-2657-16T3

According to the amended complaint, with the exception of 

Healthport Technologies, LLC, defendants operate hospital 

facilities throughout New Jersey. The complaint identifies 

Healthport as a "medical record reproduction company" and an agent 

of defendants that provides hospital records to requestors. 

The fees for records a hospital may charge a patient or the 

patient's authorized representative are regulated:

If a patient or the patient's legally 

authorized representative requests, in 

writing, a copy of his or her medical record, 

a legible, written copy of the record shall 

be furnished at a fee based on actual costs. 

One copy of the medical record from an 

individual admission shall be provided to the 

patient or the patient's legally authorized 

representative within 30 days of the request, 

in accordance with the following:

1. The fee for copying records 

shall not exceed $1.00 per page or 

$100.00 per record for the first 100 

pages. For records which contain 

more than 100 pages, a copying fee 

of no more than $0.25 per page may 

be charged for pages in excess of 

the first 100 pages, up to a maximum 

of $200.00 for the entire record;

2. In addition to per page 

costs, the following charges are 

permitted:

i. A search fee of no more 

than $10.00 per patient per 

request. (Although the patient 

may have had more than one 

admission, and thus more than 

one record is provided, only 
4 A-2657-16T3

one search fee shall be 

permitted for that request. 

The search fee is permitted 

even though no medical record 

is found as a result of the 

search.); and

ii. A postage charge of 

actual costs for mailing. No 

charges shall be assessed 

other than those permitted in 

(d)1 and 2 above;

[N.J.A.C. 8:43G-15.3(d)(1) and (2).]

The amended complaint, which alleged defendants charged an 

unauthorized, unlawful five-dollar fee for certifying copies of 

hospital records, included four counts: violation of the New 

Jersey Administrative Code, violation of the New Jersey Consumer 

Fraud Act, N.J.S.A. 56:8-1 to -20, fraudulent and negligent 

misrepresentation, and unjust enrichment. The proposed class was:

All "patients" who, during the time 

period of March 4, 2008 through the present, 

requested copies of medical records in the 

State of New Jersey, either personally or 

through their "legally authorized 

representatives" (as such terms are defined 

in N.J.A.C. 8:43G-15.3(d)), in writing, from 

defendants . . . and who have suffered 

economic damages as a result of the payment 

of service fees that were imposed by 

[d]efendants in excess of those expressly 

authorized under N.J.A.C. 8:43G-15.3(d). 

Following procedural events unrelated to the issues on 

appeal, the completion of discovery, and mediation, the parties 

agreed to settle the suit. Defendants agreed to pay four dollars 
5 A-2657-16T3

to any class member who submitted a claim form. Defendants also 

agreed to make a minimum payment of $100,000. Any balance after 

reimbursed claims was to be paid to charity. 

The trial court preliminarily approved the settlement as well 

as the parties' plan for providing notice to potential class 

members. Because all requests for medical records were made by 

attorneys, the parties agreed to have notice sent directly to the 

attorneys, as the class list prepared from HealthPort's business 

records only contained the identity of the person who made the 

request, the patient for whom the request was made, and the 

requestor's address. HealthPort did not receive contact 

information for the patients, and HealthPort did not maintain 

copies of the medical records it processed because of 

considerations concerning the Health Insurance Portability and 

Accountability Act of 1996, 42 U.S.C. § 1320, (HIPPA) and other 

privacy laws. 

The class action notice required the attorneys to either 

affirm they were the proper claimant because they paid the 

certification fee and were not reimbursed, or indicate the fee 

should be paid to their client because their client reimbursed 

them the fee. If the client was in fact the proper claimant, then 

the attorney could register the client, provide the client's 

address to the Administrator and direct payment be sent to the 
6 A-2657-16T3

client, or provide the client's address to the Administrator and 

request the notice be sent directly to the client.

The deadline to mail the notice was August 22, 2016, and 

class members had until October 21, 2016, to opt out of the class 

or object to the settlement. Class members then had until January 

2, 2017, to submit their proofs of claim, either electronically 

or by mail. 

Appellant's attorneys received the initial notice in 

September, before any registration or notification deadline. 

Although the deadline to object was October 21, 2016, due to some 

other deadlines that were extended, appellant had the "impression"

the deadline to object was also extended and did not object until 

November 13, 2016. Despite the late objection, during the motion 

to approve the settlement on December 16, 2016, the trial court 

heard and considered appellant's arguments against the settlement. 

Appellant objected to the settlement based on the method of 

notice. She argued defendants should have sent the notice directly 

to the patients, not their attorneys. She claimed most class 

members never received notice, a fact evidenced by only 4.4% of 

affected patients submitting claims. She argued the method of 

notice placed the onus on the class members' prior counsel to 

alert class members of the pending settlement, causing many members 

to never receive notice. Thus, the method of notice was 
7 A-2657-16T3

insufficient as it "aimed at minimizing defendants' exposure [and]

maximizing class counsels fees" and was not "aimed at compensating 

those harmed by defendants['] unlawful practices."

Respondents argued that sending notice to the attorneys who 

were invoiced was more streamlined and reasonable, as all of 

defendants' records showed the person who paid the fee was the 

attorney requestor, not the patient. Defendants had no way of 

knowing if the patient-clients reimbursed the attorneys for the 

fee. 

The court decided on January 6, 2017, to approve the final 

settlement for the class action, noting "[t]o satisfy the standards 

of due process [in providing notice], mandatory individual notice

is not required." The court acknowledged notice mailed directly 

to the patients "would have been the best notice available," but 

found it "was unreasonable in this matter." HealthPort did not 

have individual addresses for each patient, but only contact 

information for the law firms. 

The court found it reasonable to instead provide notice to 

the individual who had requested the documentation, which, in this 

case, consisted primarily of the patients' attorneys. Thus, the 

court found providing notice to the attorneys was the "only 

reasonable way . . . that Health[P]ort could have provided the 

notices." The court also found the settlement was in the best 
8 A-2657-16T3

interest of the class members, as it reimbursed eighty percent of 

the five dollar fee. 

Appellant appeals from the resulting dismissal of the 

underlying class action, issued on January 26, 2017. On appeal 

she makes three arguments regarding notice:

I. The Trial Court's Determination That 

Notice Was Adequate Was Incorrect and 

Should Be Reversed

II. Direct Notice Should Have Been Utilized 

to Provide Class Members Notice and 

Fairly Apprise Them of Their Rights and 

Remedies

III. The Class Was Not Provided with the Best 

Notice Practicable

We must first determine the appropriate standard of review. 

Rule 4:32 provides the framework for class actions, and is modeled 

after Federal Rule of Civil Procedure 23(a) and (b). See Saldana 

v. City of Camden, 252 N.J. Super. 188, 194 n.1 (App. Div. 1991). 

Because there is no binding precedent within our court to determine 

the standard of review in assessing the approval of a class action 

settlement, and because Rule 4:32 is modeled after its federal 

counterpart, we look to federal precedent.

The Third Circuit has determined that when reviewing "the 

decision of the . . . [c]ourt to certify [a] class and approve [a] 

settlement," it does so "under an abuse of discretion standard." 

In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 527 (3d Cir. 
9 A-2657-16T3

2004) (citations omitted). The abuse of discretion standard is 

applied because "[t]he [trial] court has considerable discretion 

in determining whether a settlement is fair and reasonable." Bryan 

v. Pittsburgh Plate Glass Co. (PPG Indus., Inc.), 494 F.2d 799, 

801 (3d Cir. 1974). 

Applying that standard, we conclude the trial court did not 

abuse its discretion in determining the class notice was the best 

notice practicable under the circumstances. Rule 4:32-2(b)(2) 

requires "the best notice practicable under the circumstances, 

consistent with the due process of law." Due process imposes 

certain minimum notice requirements, but does not require 

individual notice to each party member. Sulcov v. 2100 Linwood 

Owners, Inc., 303 N.J. Super. 13, 36 (App. Div. 1997) (citation 

omitted). Instead, "[t]he court shall direct notice in a 

reasonable manner to all class members who would be bound by a 

proposed settlement." R. 4:32-2(e)(1)(B). 

In the underlying action, the known medical record requestors

were the attorneys who requested the records on behalf of their 

clients. Although the attorneys may have been reimbursed the 

disputed certification fees by their clients, the only contact 

defendants had concerning the requested records was with the 

attorneys and law firms requesting them. Therefore, it was

reasonable for notice to be sent to the attorneys. 
10 A-2657-16T3

Appellant contends by having notice sent to the attorneys, 

the court burdened attorneys to contact their clients, explain the 

settlement and the options, and ultimately file for a claim in the 

settlement. However, the notice sent to the attorneys only 

requested they either affirm the attorney is the proper claimant, 

or, if not, provide the address of the proper claimant so that 

notice might be sent there. Attorneys could also register for 

their clients and have payment directed to them. 

We do not find the trial court abused its discretion in 

finding appellant's proposed notice was less practicable than that 

used. Appellant argues notice should be sent either directly to 

the underlying patients, or to both the underlying patients and 

their attorneys. However, the former method overlooks that the 

attorneys requested the documents and payed the certification fee, 

and the latter method raises the issue of duplicative claims. In 

addition, due to privacy considerations, it was unclear who was 

permitted to provide patient names. For these reasons, we conclude 

the trial court did not abuse its discretion in determining that 

sending the notice to the requesting attorney was the most 

effective and efficient manner to ensure notice reached the proper 

claimant. 

Affirmed.